Karnataka High Court
Shrikant S/O. Nemanna Nagannavar vs Siddappa S/O. Nemanna Nagannavar on 3 September, 2013
Author: Ashok B. Hinchigeri
Bench: Ashok B. Hinchigeri
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.80948/2013 (GM-CPC)
BETWEEN:
1. Shrikanth,
S/o Nemanna Nagannavar,
Age:60 years, Occ:Agriculture,
R/o Dhupadal, Tal:Gokak,
Dist:Belgaum 590 001.
2. Devendara,
S/o Nemanna Nagannavar,
Age:55 years, Occ:Agriculture,
R/o Dhupadal, Tal:Gokak,
Dist: Belgaum 590 001.
3. Smt.Sonawwa,
W/o Devendra Nagannavar,
Age:50 years, Occ:Agriculture,
R/o Dhupadal, Tal:Gokak,
Dist:Belgaum 590 001.
4. Smt.Putalawwa,
W/o Girimallappa Nagannavar,
Age:84 years, Occ:Agriculture,
R/o Dhupadal, Tal:Gokak,
Dist:Belgaum 590 001. ... Petitioners
(By Sri Sachin S. Magadum, Advocate)
AND:
1. Siddappa,
S/o Nemanna Nagannavar,
Age:64 years, Occ:Agriculture,
2
R/o Dhupadal, Tal:Gokak,
Dist:Belgaum 590 001.
2. Laxman,
S/o Dundappa Nagannavar,
Age:79 years, Occ:Agriculture,
R/o Dhupadal, Tal:Gokak,
Dist:Belgaum 590 001.
3. Raju,
S/o Nyamanna Nagannavar,
Age:44 years, Occ:Agriculture,
R/o Dhupaldhal, Tal:Gokak,
Dist:Belgaum.
4. Chandar,
S/o Kuber Kamate,
Age:48 years, Occ:Agriculture,
R/o Belavi, Tal:Hukkeri,
Dist:Belgaum.
5. Raju,
S/o Kuber Kamate,
Age:45 years, Occ:Agriculture,
R/o Belavi, Tal:Hukkeri,
Dist:Belgaum.
6. Smt.Jayshree,
W/o Anil Nagannavar,
Age:41 years,
Occ:Agriculture,
R/o Dhupadhal,
Tal:Gokak, Dist:Belgaum.
7. Mahaveer,
S/o Kuber Kamate,
Age:45 years,
Occ:Agriculture
R/o Belavi, Tal:Hukkeri
Dist:Belgaum. ... Respondents
3
(By Sri Sangram S. Kulkarni, Advocate for C/R1;
Notice to R2 to R7 is dispensed with)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the order dated 6.7.2013
passed on I.A.No.24 in O.S.No.2/2003 on the file of I/C.
Principal Senior Civil Judge, Gokak vide Annexure-E and etc.
This writ petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Sri Sangram S. Kulkarni, the learned counsel has entered caveat on behalf of the respondent No.1. Notice to the respondent Nos.2 to 7 is dispensed with.
2. The petitioners (defendant Nos.1 to 4) have challenged the order, dated 6.7.2013 passed by the Court of the Principal Senior Civil Judge, Gokak on I.A.No.24 in O.S.No.2/2003.
3. The facts of the case in brief are that the first respondent (plaintiff) filed the suit against the petitioners and the respondent Nos.2 to 7 for partition and separate possession of 1/3rd share in the suit schedule properties. In the said suit proceedings, the petitioners and the other defendants filed the I.A. seeking a direction to the first respondent to include the property measuring 6 acres 28 guntas at R.S.No.228 of Dhupadal Village, Gokak Taluk in the list of the suit schedule 4 properties. On the Trial Court dismissing the said I.A., this petition is filed.
4. Sri Sachin S.Magadum, the learned counsel for the petitioners submits that the suit for partial partition is not at all maintainable. In support of his submissions, he read out paragraph No.19 of this Court's decision in the case of SRI TUKARAM v. SRI SAMBHAJI AND OTHER S reported in ILR 1998 KAR 681.
19. It has been contended by the Learned Counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the Appellate Court has observed that Section 261 of Mulla's Hindu Law, 15th Edn., at pages 351 and 352 makes it clear that non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating co-parceners have not filed the suit. The mere fact that the other non-alienating co- parceners viz, defendants 7 to 9 did not join the plaintiff in filing the suit is not material. The right of non- alienating co-parcener in Bombay area does not depend upon the whims and fancies of remaining non-alienating 5 co-parceners who for reasons best known to them, may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several non- alienating co-parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non- alienating co-parceners. The I Appellate Court considered the ruling in AIR 1983 SC 124 wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the Collector for effecting partition. But it is not the case in the present suit. In ILR 1989 KAR 1895, it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of non-alienating co-parcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant 1 and defendants 7 to 15 are the members of Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law, 13th Edn. regarding the rights of purchaser of co-parcener's interest. It has been stated that the non-alienating co-parceners are 6 entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It is to be noted that in AIR 1984 AP 84, it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co- sharers should be impleaded. The suit of partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants 2 to 6. The 1st defendant is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the Learned Counsel for the alienees while allotting the share to defendant 1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non- alienating co-parceners of the joint family property. The suit has been filed by the non-alienating co-parcener with 7 respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld.
5. Sri Magadum would contend that the property in question has to necessarily form part of the suit schedule properties. He submits that as the petitioners are proving that 8 the property in question is purchased with the joint family funds, its inclusion in the suit schedule properties would not put the respondent No.1 to any prejudice.
6. Sri Sangram S.Kulkarni, the learned counsel for the respondent No.1 submits that the petitioners and other defendants have been taking up conflicting pleas. It is their specific defence in the written statement that the partition has taken place in 1975. But they want the property, which the first respondent - plaintiff has purchased in 1985, to be treated as the joint family property. He submits that no direction can be sought to the plaintiff to include a particular item in the suit schedule. He submits that the property in question is a sthridhan property and is therefore not available for being partitioned.
7. The submissions of the learned advocates have received my thoughtful consideration. There can be no dispute with the legal position that a suit for partial partition is not maintainable. But then the plaintiff cannot be directed to include a particular property in the suit schedule. The defendants can take a necessary plea in the written statement and can file the 9 counter claim. Furthermore, in a partition suit, the parties can be transposed, but the plaintiff cannot be compelled to include a particular item in the suit schedule. The Trial Court has rightly formulated the following additional issues:
1) Whether the plaintiff proves that Survey No.228 measuring 6 acres 28 guntas of Dhupadal village is a sthridhan property?
2) Whether the suit of the plaintiff is bad for not impleading Survey No.228 as the schedule property and not bringing into common hotchpot?
8. By the framing of the two additional issues and placing the burden on both the parties for proving their case and counter case, the Trial Court has safeguarded the interests of both the parties. If the plaintiff fails to prove that the property in question is a sthridhan property and if it is shown that the property in question is purchased with the joint family funds, the necessary consequences would follow.
9. I do not propose to deliver any finding on the defence of the first respondent - plaintiff that if the partition had taken place in 1975, as admitted and claimed by the defendants, the property in question could not have been purchased with the 10 joint family funds. That is the issue to be answered by the Trial Court, which is seized of the matter.
10. Thus, not finding the Trial Court's order to be bad in any way, I decline to interfere in the matter. This petition is dismissed. No order as to costs.
Sd/-
JUDGE MD